Tuesday, March 31, 2009

Thank you to Chris Capozzolafor a great stint as a guest blogger during the past month, with posts on everything from grant writingand book reviewing advice, recommendations of scholarship in Asian legal history, news about the OAH meeting, and more. Chris can usually be found at the History Department at MIT. If you have not yet read his great new book, Uncle Sam Wants You:World War I and the Making of the Modern American Citizen, it can be found here and here.

Written for everyone interested in women's and gender history, History Matters reaffirms the importance to feminist theory and activism of long-term historical perspectives. Judith M. Bennett, who has been commenting on developments in women's and gender history since the 1980s, argues that the achievement of a more feminist future relies on a rich, plausible, and well-informed knowledge of the past, and she asks her readers to consider what sorts of feminist history can best advance the struggles of the twenty-first century.

Bennett takes as her central problem the growing chasm between feminism and history. Closely allied in the 1970s, each has now moved away from the other. Seeking to narrow this gap, Bennett proposes that feminist historians turn their attention to the intellectual challenges posed by the persistence of patriarchy. She posits a "patriarchal equilibrium" whereby, despite many changes in women's experiences over past centuries, women's status vis-à-vis that of men has remained remarkably unchanged. Although, for example, women today find employment in occupations unimaginable to medieval women, medieval and modern women have both encountered the same wage gap, earning on average only three-fourths of the wages earned by men. Bennett argues that the theoretical challenge posed by this patriarchal equilibrium will be best met by long-term historical perspectives that reach back well before the modern era. In chapters focused on women's work and lesbian sexuality, Bennett demonstrates the contemporary relevance of the distant past to feminist theory and politics. She concludes with a chapter that adds a new twist--the challenges of textbooks and classrooms--to viewing women's history from a distance and with feminist intent.

A new manifesto, History Matters engages forthrightly with the challenges faced by feminist historians today. It argues for the radical potential of a history that is focused on feminist issues, aware of the distant past, attentive to continuities over time, and alert to the workings of patriarchal power.

And blurbs:

"This is a remarkable work, at once erudite, insightful, witty, provocative, and analytically brilliant. Bennett writes with narrative verve and energy that captures the reader in both her compelling argument and detailed evidence."--Bonnie G. Smith, Rutgers University

"Judith Bennett offers a striking analysis of the current state of feminist history. In a series of lucid chapters, she demonstrates the political and intellectual consequences of forgetting the past. This book should be required reading for every feminist who cares about the future."--Martha Vicinus, University of Michigan

"Bennett argues convincingly that our understanding of modern women's condition and contemporary feminist dilemmas must be rooted in the longue durée. From that perspective, we can develop a more nuanced and sophisticated analysis of the 'patriarchal equilibrium' that has so long constrained women's lives and efforts to transform them."--Nancy A. Hewitt, Rutgers University

Most important is the reminder that your proposal will surely be read by people who are not specialists in your field, so any good proposal should explain the terms of debate in your area as well as what's significant about what you do.

Then there's an obvious -- but frequently overlooked -- point: you need to tell them what you are actually going to do. Are you going to collect quantitative data? Archival evidence? Ethnographic fieldwork? Are you writing a book, an article, or the script of a documentary? Many scholars get so excited about their subjects that they forget to explain their own work, and it's not unreasonable for funders to know what, exactly, they are paying for.

This Friday (April 3) is the deadline for submissions for a conference at Washburn University in Topeka, Kansas, on September 22-24, 2009, on the subject "Affirmative Action at Forty: Requiem or Renaissance?" Marking the 40th anniversary of Richard Nixon's Philadelphia Plan, the conference seeks both historical and policy-oriented papers, and will include sessions devoted to undergraduate and law student work.

Neil Cogan, who steps down in July as Dean of Whittier Law School, has been awarded a fellowship from the Gilder Lehrman Institutefor his project: Law of the American Slave Societies and their Reconstruction. Hat tip.

The relationship between the past and the present is at issue in a new article, Jurodynamics of Islamic Law, by Ali Khan, Washburn University School of Law. It is forthcoming in the Rutgers Law Review (2009). Here's the abstract:

Abrogation is a classical concept of Islamic law, which allows jurists to organize the normative complexity of divine texts. As a rule of temporality, abrogation invalidates prior rules found incompatible with subsequent rules. By stretching the rule, critics and reformers of Islamic law wish to abrogate substantial portions of the Quran and the Prophet's Sunnah. This methodology of modernizing Islamic law secures no following in the Muslim world, which jealously defends the integrity of divine texts. Jurodynamics of Islamic law offers a sophisticated methodology, which respects the integrity of divine texts, retains the jurisprudential heritage of past centuries, but at the same time modernizes legal systems to absorb modernity and constantly evolving spatiotemporal realities. No dynamic legal tradition cuts loose from the past or dwells exclusively in the past. Jurodynamics is the study of Shariah norms in motion, signifying both stability and change. Jurodynamics recognizes the Shariah as the Basic Code, which empowers Islamic states to construct dynamic bonds with classical jurisprudence (fiqh), positive law (qanun), and international law (siyar). Accusations that the Shariah is a barrier to modernity dissipate under the scrutiny of jurodynamics.

In this article I unpack a murder trial from Pennsylvania in 1843, using it to explore how people in the first half of the nineteenth century could and did lay claim to the right to be sovereign by asserting the right to take the law into their own hands. The possibility that the people asserted sovereign power in the first half of the nineteenth century runs counter to the standard constitutional history of the United States. According to that narrative, the people, having delegated their sovereign power to their governments with the ratification of the Constitution, became observers, not participants in the constitutional order. They would not return to active participation in that order until the rights talk revolution of the late nineteenth and early twentieth centuries gave them a means of challenging and limiting the power of the state. And even then, their sovereignty only gave them a check, a right of reaction that fell short of taking actual control of the law. But this study follows a handful of recent works that have begun to reclaim the peoples constitutional role in that earlier period. To do so this article looks at both social practices and ideas, and considers the specific problem of how people exercised their constitutional power over the common law.

In the 1972 case of Branzburg v. Hayes, the Supreme Court held that the First Amendment does not protect journalists who refuse to reveal their confidential sources or news gathering product in response to a federal grand jury subpoena. That decision has remained vital for 35 years and has reverberated through a number of recent high-profile cases. Despite some form of protection in nearly every state court, reporters haled before a federal judge may have no recourse save prison. Devastating as Branzburg has been for the so-called journalist's privilege, its negative impact has been far broader. Branzburg is one of Supreme Court's earliest news gathering decisions and arguably the most influential.

While the press has been very successful in persuading the courts to find First Amendment protection for its editorial product, it has been far less successful with regard to protection for news gathering. The Branzburg precedent epitomizes the frustration of the press in attempting to secure First Amendment, or even statutory, protection for news gathering, and this article explores one of the primary reasons for that failure: the inability of the diverse elements that comprise the press to agree on the appropriate scope of such protection. In particular, the article tells the little-known story of the dispute between the New York Times and its reporter, Earl Caldwell, whose pursuit of a testimonial privilege ultimately led to the Branzburgdecision.

A bio of Caldwell, who refused to provide police with information about his Black Panther sources, is here. An interview is here, and a photo of Caldwell testifying before Congress in 1973 is here. Photo credit.

"Legal Thinking and Its Limits: Citizenship, Segregation, and the Corporation," a session chaired and moderated by Stewart Jay (Univ. of Washington Law) and Barbara Welke (Minnesota), with papers by Veta Schlimgen (Oregon), "Intermediate Citizens: 'American Nationals,' Filipino Americans, and U.S. Imperialism"; Sarudzayi Matambanadzo (UCLA), "(Dis)Embodying the Person, (Dis)Entangling the Body: The Rise of the Corporate Person from 1787 to 1850; and Camille Walsh (Oregon), "Claiming the Right to Education for Poor Children of Color, 1899-1936."

"Rules of Warfare: The History of Ethics and Behavior in Conflict," a session chaired by Ricardo Herrera (US Army Combat Studies Institute), with papers by Matthew Muehlbauer (Temple), "Fear, jus in bello, and the Pequot War"; S. Michael Pavelec (Naval War College), "International Law, Organizations, and War: Who Makes the Rules?"; and Paul J. Springer (USMA), "Peacetime Promises and Cold War Practices: The Geneva Conventions in Theory and Application."

At a session on "Sex, Race, and Empire across the West and the Pacific" chaired by Paul Kramer (Iowa), the audience heard a fascinating set of papers. Mary Lui (Yale) used the story of the 1950s goodwill tour of Korean-American Olympic diver Sammy Lee to explore gender, race, and nation in the reception of Cold War public diplomacy. In "The Insurgent Pacific: Race, Wars, and Antiradicalism before the First Red Scare," Moon-Ho Jung (Washington) connected William McKinley's assassination in 1901 and sedition laws in the colonial Philippines to make a provocative and compelling case for rethinking the origins of the U.S. security state. And Pablo Mitchell (Oberlin) drew on a complex 1923 pandering case in Los Angeles to explore meanings of race and sexuality in Latino America.

In the afternoon, I didn't get to attend the star-studded roundtable on the 100th anniversary of the NAACP because I was on panel of my own. Chaired by Beth Bailey (Temple), "Race, Sex, and Gender in the Twentieth-Century Military" explored the confluence of military and domestic culture. I presented a paper on the efforts of Filipino veterans of World War II to achieve equity in benefits, and Kara Dixon Vuic (Bridgewater) presented fascinating material on women Red Cross volunteers in wartime Vietnam.

John Hope Franklin, who died this week at the age of 94, is remembered as a paradigm-shifting historian in the New York Times. "When you think of ‘From Slavery to Freedom,’" noted David Levering Lewis, "there’s before and there’s after....Before him you had a field of study that had been feeble and marginalized, full of a pretty brutal discounting of the impact of people of color. And he moved it into the main American narrative. It empowered a whole new field of study.” Beyond his scholarly contributions, "few historians achieved the stature, both as scholars and as moral figures — and as combinations of the two — that Dr. Franklin did," writes Peter Applebome.

Walter Dellinger, writing in the Washington Post, called Franklin "one of the most remarkable Americans of the 20th century. He was the master of the great American story of that century, the story of race. John Hope wrote it, he taught it, and he lived it." Hat tip.

"For seven years," Dellinger recalled,

he and I taught constitutional history together at Duke, and I never ceased to marvel at how he managed both to embody this history and yet recount it with an extraordinarily candid honesty. Our students would fall into the deepest hush while he recounted his experiences researching his epic 1947 work, "From Slavery to Freedom: A History of African Americans" (reprinted scores of times since, and still widely read), in segregated libraries at Southern universities and Southern state libraries. He would describe the various Jim Crow rules he was required to navigate -- a separate table from white patrons, a prohibition on being waited on by white female librarians and similar indignities -- without a trace of bitterness.

Stanley Katz writes on the Chronicle of Higher Educationblog that of all of Franklin's books, his favorite is "The Free Negro in North Carolina, 1790-1860, originally his Harvard doctoral dissertation, first published in 1943. The book was pathbreaking in many respects, especially in its mining of manuscript court records, and I think it has never sufficiently been recognized as one of the first great research exercises in my own scholarly field, American legal history."

Katz's favorite memory of Franklin comes from their years at the University of Chicago. One evening they were both driving home late at night after a tenure meeting.

John Hope drove a large Mercedes-Benz sedan and got across 53rd St. just before the light changed. I was following in my decrepit little Rambler American, and sailed through the light, only to be stopped immediately by a police cruiser. John Hope noticed, and pulled over to the curb. As the cop was bawling me out, he noticed the car stopped ahead. “Is that Professor John Hope Franklin?” “Yes it is, officer.” “Well, then, young man, if you can just get me his autograph you can drive on home.”

Franklin not only wrote about the legal history of African Americans, he lived it, serving as an expert witness in desegregation cases years before he helped Thurgood Marshall with an historical brief in Brown v. Board of Education. After much effort, the team of historians had made legal historians out of the lawyers, he told me in an interview a couple of years ago. I asked whether working on the case had an impact on him, as well. "Of course!" he said.

Saturday, March 28, 2009

Yesterday's sessions of the Organization of American Historians were once again overflowing with presentations of interest to legal historians, including a panel on "Guilt, Amnesty, and Pardon after the Civil War," and a very practical session on "History Online: Resources Available from the Federal Government." There are even more than you think, only exacerbating the (or at least this!) historian's terror of finding too many sources.

The OAH also sponsored a novel session format that focused on the work-in-progress of a senior scholar. Gary Gerstle (Vanderbilt) precirculated two chapters of an upcoming book on the state and democracy in the "long" nineteenth century. Alice Kessler-Harris (Columbia), Robin Einhorn (Berkeley), and Meg Jacobs (MIT) offered comments, and the conversation was lively, contentious, and promised a compelling book for U.S. political and legal historians to read when it comes out.

Nicholas Aroney, TC Beirne School of Law at the University of Queensland, has posted the introduction to The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (Cambridge University Press, 2009). Here is the abstract:

This book offers an exposition of the idea, proclaimed in the Preamble to the Australian Constitution, that Australia is a federal commonwealth. Original sources are analyzed, neglected writers are brought to light, and conceptual frameworks are evaluated. The book takes careful account of the influence which the American, Canadian and Swiss Constitutions had upon the framers of the Australian Constitution, and shows how the framers wrestled with the problem of integrating federal ideas with inherited British traditions and their own experiences of parliamentary government. In so doing, the book explains how the Constitution came into being in the context of the groundswell of federal ideas then sweeping the English-speaking world. In advancing an original argument about the relationship between the formation of the Constitution, the representative institutions, configurations of power and amending formulas contained therein, the book sheds fresh light on the terms and structure of the Australian Constitution and marshals these insights to address a range of problems associated with the interpretation and practical operation of the Constitution.

Friday, March 27, 2009

This year's annual meeting of the Organization of American Historians began yesterday in Seattle. The program offers an amazing array of panels to interest legal historians. Yesterday's sessions covered everything from "Creating Peoples: Publications and Power in the Atlantic World" to "No Time Like the Present: Preserving, Archiving, and Teaching the Army's Branch History in the Global War on Terrorism."

One session of particular interest to legal historians was Revolutions and the Law of Slavery, chaired by Jack Rakove (Stanford) and Susanna Blumenthal (University of Minnesota), featuring two papers: Holly Brewer, North Carolina State Univ., "Inheritable Blood: Of Slavery and Freedom, Aristocracy and Empire," and Laura Edwards, Duke Univ., "Individual Rights and the Transformation of Slave Law, 1787-1860."

Some of the other highlights for me yesterday included a paper by Todd Bennett (U.S. State Dept.) on the American Bicentennial as international history, tracing how British and U.S. diplomats used the 1976 celebrations to reforge the Anglo-American relationship. A roundtable on "U.S. Women's History Beyond Borders" included an eloquent reflection on the intersections of race and sex in 1848 and 2008 by Martha S. Jones (Michigan). And, finally, in a really remarkable panel on race and sexuality in postwar America chaired by Margot Canaday (Princeton), a paper by Tim Retzloff (Yale) on the "sexual commute" in 1950s metropolitan Detroit that draws on a massive sheaf of postwar Detroit police records.

State v. Mann Exhumedis a new essay by Sally Greene, based on new archival evidence about this important 19th century case overturning a jury verdict convicting John Mann for assaulting a slave, Lydia. Other scholars working on the law of slavery have noted that the trial record for the case was missing in court archives. But Greene found it. The case was not filed under "State v. Mann," but under "miscellaneous slave records; cases involving slaves" in the Chowan County court files. This is such a good example of the need to look broadly across categories when doing archival research, to comb through finding aids rather than targeting only the folders that seem most promising, and of the importance of working with archivists who know the files.

State v. Mann overturned a jury's conviction of John Mann for assault upon a slave he had hired from a woman named Elizabeth Jones. Historians seeking to understand the case have faced a significant hurdle: the paucity of evidence of the facts surrounding the trial. The record is not silent, however, on John Mann, Elizabeth Jones, or her wounded slave Lydia. Available evidence enables us to reconstruct sufficient facts to support tentative conclusions.

Elizabeth Jones was a minor who had inherited Lydia upon the death of her parents. She was being raised in rural Chowan County in the household of her brother-in-law, Josiah Small. Small acted in Elizabeth's interest by keeping Lydia hired out. In 1828 Lydia was hired by John Mann, a widowed and bankrupt sea captain living in Edenton. Little about John Mann would have suggested to a Chowan County judge and jury that he ought to enjoy the powers of a master.

Close study of the evidence suggests that Ruffin's reversal would have been seen in Edenton as wrong on the facts. Further study of the law of masters, hirers, and slaves suggests that the reversal was at least questionable on the law. Read in this new light, State v. Mann can be seen to stand on its own as a succinct but powerful treatise in implicit defense of slavery in terms that Ruffin's fellow planters would have readily understood. In justifying the reversal of Mann's conviction, Ruffin successfully enlists the key Burkean themes of conservative southern thought of the day, fatalistic themes emphasizing the surpassing importance of the status quo over any hope of reform. The opinion can be read as part of a broader pattern reflected in the writings of an increasingly defensive slaveholding elite; thematically it foreshadows Thomas Dew's crucially important defense of slavery in his Review of the Debate in the Virginia Legislature of 1831 and 1832. And yet Ruffin's rhetoric outdid itself. In attempting to silence any criticism of the workings of the system from which its author so clearly benefited, ironically State v. Mann may have hastened slavery's undoing.

Today, media corporations and their professional and trade associations, along with organizations like Reporters Committee for Freedom of the Press and the American Civil Liberties Union, carefully monitor litigation that implicates First Amendment values and decide whether, when, and how to intervene. It was not always so. Litigation by an institutional press to avoid or create doctrinal precedent under the First Amendment really began with the appointment of Col. Robert R. McCormick to head the ANPA's Committee on Freedom of the Press in the spring of 1928 and his involvement in Near v. Minnesota beginning that fall. Because of McCormick's intervention, Near's holding that prior restraints are anathema to the Constitution has been a bulwark of our legal system ever since.

Part I of this article briefly outlines the background of the Near case, while Part II discusses the role of incorporation in making a First Amendment challenge feasible. Part III traces McCormick's efforts to draw the institutional press into the Near litigation. Part IV covers the proceedings before the Supreme Court, while Part V describes the landmark opinion itself. Finally, Part VI discusses the aftermath of Near v. Minnesota and the mobilization of the institutional press.

Thursday, March 26, 2009

Juliet P. Stumpf, Lewis & Clark Law School, takes up the history of immigration sanctions in a new paper, Fitting Punishment. Here's the abstract:

Proportionality is conspicuously absent from the legal framework for immigration sanctions. Immigration law relies on one sanction - deportation - as the ubiquitous penalty for any immigration violation. Neither the gravity of the violation nor the harm that results bears on whether deportation is the consequence for an immigration violation. Immigration law stands alone in the legal landscape in this respect. Criminal punishment incorporates proportionality when imposing sentences that are graduated based on the gravity of the offense; contract and tort law provide for damages that are graduated based on the harm to others or to society.

This Article represents the first and fundamental step in a larger project of articulating a proposed remedial scheme that would align immigration law with the broader landscape of legal sanctions. It traces for the first time the history of immigration sanctions and offers a historical perspective on alternatives to the recent arrival of deportation as the central immigration sanction. It then proposes a new approach to remedying violations of immigration law, constructing a system of graduated sanctions grounded in criminal law and aligning immigration remedies with the tenets of U.S. immigration law.

News reports of the outlines of the Obama Administration's plans to create a new regulator of systemic financial risk prompt me to post the opening paragraph of a book chapter I'm currently writing:

“I believe in the stock exchanges,” declared the New Deal lawyer Thomas G. Corcoran in a congressional hearing on the bill that became the Securities Exchange Act of 1934. “I do not believe you should kill them. I do believe you should regulate them–not because I have any social philosophy in regard to the subject–but because as a sheer matter of economic wisdom they should be regulated.” Speaking not long after the Dow Jones Industrial Average fell 89 percent and unemployment reached 25 percent, Corcoran charged that unregulated financial markets “have cost many millions of dollars; they have cost 12,000,000 men their jobs.” With the lawyer for the New York Stock Exchange glowering nearby, he defended the sweeping power the legislation would give federal administrators. The stock exchanges “cannot be expected tamely to submit to regulation,” he declared. To create a commission to regulate America’s financiers and not to endow it with broad powers was to “put a baby into a cage with a tiger to regulate the tiger.” The danger was all too real that “the stock exchanges and the forces allied with stock exchanges, which are supposedly being regulated, will actually regulate the regulators.”

Wednesday, March 25, 2009

"The eminent historian John Hope Franklin died today at the age of 94," commences an obituary on the Chronicle of Higher Education's website. The Chronicle's notice continues:

Mr. Franklin graduated from Fisk University in 1935 and earned a doctorate in history at Harvard University. In his long career, he taught at St. Augustine’s College, North Carolina Central University, Brooklyn College, and the University of Chicago. In 1983 he moved to Duke University, which today published a tribute to his life and career.

In 1948 Mr. Franklin served as an expert witness on behalf of Lyman T. Johnson, whose federal lawsuit against the University of Kentucky resulted in the desegregation of that institution.

More from the Chroniclehere. The New York Times's notice is here. Duke University's extensive webpage on Professor Franklin is here.

The Graduate Institute for Constitutional History (formerly the Institute for Constitutional Studies) is pleased to announce its tenth annual residential summer research seminar for advanced graduate students and junior faculty. This year’s topic is “Citizenship.” Gerhard Casper, Professor of Law and President Emeritus, Stanford University, and Linda K. Kerber, Professor of History, The University of Iowa, will lead the seminar.

[The announcement continues:]

The political transformations of the late eighteenth century in America and in France reached back to Greek and Roman understandings of the responsible participant in the city-state, and transformed subjects into rights-bearing citizens. In our own time, citizenship is often treated as static, a description of an individual's fixed relationship to the nation. The absence of citizenship--“statelessness “--is now recognized as a situation of extreme vulnerability.

But the meanings of citizenship, even in a stable nation, are dynamic. The Constitution uses the word "citizen" sparingly--as a requirement for election as president, senator or representative; authorizing federal courts to adjudicate claims between citizens of different states; and, notably, in the Fourteenth Amendment’s guarantee of citizenship to “all persons born or naturalized in the United States.” But the ingredients of citizenship are not specified in the Constitution (which generally refers to “the people”) and remained to be developed in practice over time. The claims to citizenship of aboriginal peoples, of women, of men and women of minority races, ethnicities and sexualities, have all been fragile. We share a pressing need to understand citizenship--and claims to it by immigrants, refugees, and the stateless; men, women and children--in historical, sociological, economic, political and legal context. We welcome subjects that are comparative and transnational, as well as those that focus on the experience of a single nation.

We will conduct this seminar as a workshop; we welcome early career scholars and graduate students. We ask that participants identify their topics in advance and provide a short bibliography of suggested shared readings. Our regular meetings will be devoted to discussion of significant texts identified by the conveners and the presentation by participants of early work in progress for comment and refinement. Some time outside the scheduled meetings will be reserved for individual consultation with the seminar leaders.

The seminar will meet at the New-York Historical Society, 170 Central Park West, New York City, from June 21 to June 26, 2009. The Graduate Institute for Constitutional History will reimburse participants for their travel expenses (up to $350), provide accommodation at The New School, and offer a modest stipend to cover food and additional expenses. Seminar enrollment is limited to fifteen participants.

Applicants for the seminar should send a copy of their curriculum vitae, a brief description (three to five pages) of the research project to be pursued during the seminar, and a short statement on how this seminar will be useful to them in their research, teaching, and/or professional development. Materials will be accepted until April 15, 2009, and only by email at Mmarcus@nyhistory.org. Successful applicants will be notified soon thereafter.

For further information, please contact Maeva Marcus at (202) 994-6562 or send an email to Mmarcus@nyhistory.org.

This paper demonstrates that the public/private distinction that undergirds the view that States have a monopoly of violence of the means to wage war while inaccurate continues to inform contemporary debates in international law in the context of conflicts over resources like diamonds. It shows how the sharp distinctions and boundaries between public and private realms in relation to the monopolization of violence contributes to the ambivalent commitments of the global legal order -and of international law in particular - in dealing with non-state actors engaged in initiating or starting wars in the context of resource wars. In short, my claim is that international law is split at the root - it is split at a number of levels: first, it is split in proceeding from the premise that the use of force (violence) can only be evaluated for its lawfulness if it fulfills certain criteria that relate to the conduct of a State, but where it involves the conduct of non-State actors such violence/use or use of force largely - though not exclusively - falls outside the scope the rules of jus ad bellum.

Second, contemporary international law is also split at its root because it has traditionally underplayed the role of private actors in creating and conducting the use of force/violence. Yet, eighteenth and nineteenth century chartered trading corporations in the colonies were explicitly mandated to wage war to expand the commercial interests of European states consistently with prevailing understanding of international law at the time. The resource conflicts of the 20th and 21st centuries, which also primarily involve non-State actors, have strikingly similar parallels with mercantile/chartered trading corporations in the colonies - although today international law arguably proceeds from the premise that only States have the monopoly of the means and the right to lawfully engage in violence/war. In short, the resource conflicts of today are analogous in many respects with the use of violence by chartered companies. Like the chartered companies of earlier periods, the roving bandits, mercenaries and guerrilas controlling resource zones seek, protect and expand their commerce in a manner in that demonstrates that violence is has not been de-democratized, de-marketized and de-territorialized, contrary to international law's premise that States have a monopoly of violence.

Ultimately, rules of international law relating to the resort the use of force artificially separate the legality of the use of force as used by States, from the use of forcible measures by non-State actors even when the history of the role of international law is deeply implicated in acquiescing to and legitimating the spread of commerce and the acquisition of territory through the use of force. What is more, to the extent that there are standards being developed to govern the extraction of mineral resources, this has involved developing 'soft' rather than hard norms. That is to say that those standards being formulated to govern the role of private actors in resource conflicts as evidenced by the Kimberley Transparency Initiative with regard to 'blood diamonds' which is not legally binding like those relating to the resort to use of force by States.

This failure so far to establish explicitly categorical and enforceable rules prohibiting the use of force in the activities of local and transnational actors engaged in resource extraction in the third world is striking given the hardness of the rules prohibiting the use of force and regulating the use of force when the actors involved are States. What makes these differences all the more striking is that the prohibitions on resort to force where States are involved are predicated on safeguarding the territorial integrity and political independence of States, precisely the twin concerns that arise with resort to the use of force by non-State actors. In short, non-state actors threaten the territorial integrity and political independence of states much the same way that resort to the use of force does with reference to State actors, and yet rules of international law have been slow to begin addressing the use of force by non-state actors in the same way.

In effect, the emerging regimes of 'soft' or voluntary rules and standards may be argued to have the effect of ineluctably facilitating the activities of local and transnational actors to extract mineral resources in so far as they do not categorically impose binding international legal sanctions on these non-state actors not to use force in the same way that they apply to States. This arguably results in the facilitation of the commercial interests of transnational and local actors. Even if one was not persuaded that the absence of a strict norm prohibiting non-State actors from engaging in forcible measures, it is clear that the thriving global trade in resources like diamonds and hard wood timber benefit directly from the forcible extraction of these resources at lower costs than if these resources were peaceably extracted. This is because wars make it difficult for weak States to build institutions that can enforce the collection of taxes and royalties. Without the income that taxes and royalties generate from resources, these States have no income to build the kind of institutions necessary to provide alternative and legitimate avenues of resource extraction.

Tuesday, March 24, 2009

The Society for History in the Federal Government has awarded the 2009 James Madison Prize to Gautham Rao for his essay, "The Federal Posse Comitatus Doctrine: Slavery, Compulsion, and Statecraft in Mid-Nineteenth-Century America." The award honors the best article or essay "that deals with any aspect of the federal government's history." The essay appeared in the Law and History Review 26 no. 1 (Spring 2008), and is available to subscribers here.

A general announcement of SHFG awards is here, but a list of 2009 winners has not yet been posted. Hat tip: David Tanenhaus.

Here's the (then-quite reactionary) Chicago Tribune's view of the New Deal, circa April 1934. Perhaps to the dyspeptic, the plot today seems the same, but the plotters are very different, n'est-ce pas?

For all its proponents' claims of its necessity as a means of constraining judges, originalism is remarkably unpopular outside the United States. Recommended responses to judicial activism in other countries more typically take the form of minimalism or textualism. This Article considers why. I focus particular attention on the political and constitutional histories of Canada and Australia, nations that, like the United States, have well-established traditions of judicial enforcement of a written constitution, and that share with the United States a common-law background adjudicative norm, but whose judicial cultures less readily assimilate judicial restraint to historicist claims. I offer six hypotheses as to the influences that sensitize our popular and judicial culture to such claims: the canonizing influence of time; the revolutionary character of American sovereignty; the rights revolution of the Warren and Burger Courts; the politicization of the judicial nomination process in the United States; the accommodation of an assimilative, as against a pluralist, ethos; and a relatively evangelical religious culture. These six hypotheses suggest, among other things, that originalist argument in the United States is a form of ethical argument, and that the domestic debate over originalism should be understood in ethical terms.

Woman suffrage led to the greatest enfranchisement in the history of the United States. Before World War I, however, suffrage states remained almost exclusively confined to the American West. The reasons for this pioneering role of the West are still unclear. Studying the timing of woman suffrage adoption at state level, we find that states in which women were scarce (the West) enfranchised their women much earlier than states in which the sex ratio was more balanced (the rest of the country). High sex ratios in the West, that is high ratios of granters to grantees, reduced the political costs and risks to male electorates and legislators of extending the franchise. They are also likely to have enhanced female bargaining power and may have made woman suffrage more attractive in the eyes of western legislators that sought to attract more women to their states. Our finding of a reduced-form inverse relationship between the relative size of a group and its success in securing the ballot may be of use also for the study of other franchise extensions and for inquiries into the dynamics of political power sharing more generally.

Monday, March 23, 2009

Some of the most interesting work in Asian legal history in the last few years has examined the operation of western legal systems in turn-of-the-century China, particularly in the coastal cities and regions known as concessions or treaty ports. In Bargaining with the State from Afar: American Citizenship in Treaty Port China, 1844-1942,Eileen Scully examines U.S. citizens living abroad in China. Her book “explores the bargaining process between federal officials and these sojourners over the rights and responsibilities of U.S. nationality beyond the territorial confines of the American nation.”

As a study of U.S. citizens outside the geographic space of the nation, Bargaining with the State from Afar is an excellent complement to the growing literature in American history that examines the legal status of aliens and migrants in the U.S. Likewise, in contrast to so much recent work in history that sees transnationality as a site of power, Scully emphasizes the legal and political vulnerability of U.S. citizens abroad.

This chapter, in the book Representations of Justice, examines the history of public displays of the power of rulers, who relied on the open rituals of judgment and punishment to make and to maintain law and order. We map how the ritualistic performance for the public became a right of the public to participate in and to observe adjudication. Using the United States as an example, we show why courts can serve as rich sources of information about legal, political, and social conflict. Yet, despite new technologies facilitating access, information about conflicts and their resolution is being limited through laws, doctrines, and practices that devolve court authority to low-visibility tribunals inside administrative agencies, outsource decision making to private providers, and reformulate court-based processes to promote private management and settlement in lieu of public adjudication.

These new processes reveal the contingency of the public's role and require analyses of the premises for public rights of audience. The argument we make for public processes relies not only on courts' capacity to provide insights into the uses of both public and private power but also on how court-based public practices generate and reflect democratic norms. Open courts welcome popular input into the production of norms. Further, they provide an opportunity to observe the ordinary, bureaucratic imposition of authority. Whether expressing and creating commitments to human dignity, fair treatment of equals, and government accountability or demonstrating aggressive retribution that can foster sectarian strife, the display of conflicts (with its attendant cross-claims, fights over facts, decisions, and sanctions) enables contestation, change, or reaffirmation of the practices and rules shown. Open courts enact commitments to living in a social order in which disputes are neither the private and exclusive domain of those in disagreement nor owned by governmental authorities holding the power to impose law.

In the 1991 case of Feist Publications, Inc. v. Rural Telephone Service Co., Inc., the Supreme Court held unanimously that only those aspects of works which exhibited a "modicum of creativity" could be protected by copyright, and hence that factual matter was not copyrightable. Feist confirmed and expanded on the Court's statements in the 1918 case of International News Service v. Associated Press that news was not copyrightable apart from its literary form. Yet for the first three-quarters of the nineteenth century, the notion that copyright incorporated an originality requirement which excluded factual matter from protection was unknown to Anglo-American law. Courts routinely found infringement of fact-based works, such as maps, charts, road-books, directories, and calendars, on the basis of the copying of their factual content, and concluded that the industry of plaintiffs in gathering and presenting facts should be protected under copyright law. What caused the transformation in the doctrine of originality between the Civil War and World War I?

This article argues that the rise of creativity-based originality in copyright law has strong ties to a previously little-examined episode in copyright history: the debate over legal protection for news in the last decades of the nineteenth century. Until the 1880s, the American news industry remained in a pre-copyright era, and played no part in copyright discourse. Newspaper editors followed a widespread custom of freely copying text from other newspapers. That custom was acknowledged and encouraged by a massive government subsidy in the form of free postage for newspaper copies that were being exchanged between editors. Newspaper owners never registered their papers before publication, and thus forsook copyright protection for them.

In the middle decades of 1800s, however, technological changes, foremost among them the introduction of the telegraph, radically changed the structure of the news industry. The telegraph provided newspapers with an opportunity to invest in more timely news; yet together with improvements in typesetting, printing, and transportation technology, it also created an appropriability problem. It shrank the lead-time advantage that newspapers traditionally had relied upon to realize the value of their investment in news, and also exposed them to competition from which they had previously been geographically isolated. At the same time, the new communications technologies led to the emergence of companies and large associations that dominated markets, often with the aid of anticompetitive practices. Prominent among these were the news industry organizations of the Associated Press and the Western Union.

Within this context, the Associated Press, Western Union and others began in the 1880s to press for legal protection of news reports, in both legislative and judicial arenas. Opposition to those efforts led to the first prominent articulations of the notion that facts are not created by authors, and are therefore not copyrightable subject matter. Paradoxically, that notion was then reinforced by proponents of legal protection for news, when they resolved to seek that protection outside of statutory copyright, in common law misappropriation, and made the tactical decision to argue that news was not copyrightable in order to avoid copyright preemption of their common law claims. An earlier, shorter version of this article will appear in a collection of essays published by Edward Elgar Publishing, Inc.

Sunday, March 22, 2009

The Journal of Women's Historyhas announced a call for short essays on the theme of teaching women's and gender history with legal sources, to be included in a roundtable edited by Dana Rabin. As noted in the call:

How can legal sources give evidence of women’s lives, experiences, and voices? How do these sources represent, clarify, and obscure gender roles? How do students negotiate and interact with these sources and what sorts of teachable moments do they stage in the classroom? What challenges do legal sources present for teaching women’s and gender history and how can one avoid misperceptions and misunderstandings?

Of particular note is the fact that contributions should be about 1,000 words. Having contributed an essay to a JWH roundtable before, I have to say it's a great opportunity to reflect on the connections between research and teaching.

Purdy's book is loosely about pushing the boundaries of liberty and searching out the common good, in pursuit of what John Adams called "the sensations of freedom," often as revealed in presidential rhetoric. Tracking the speeches of various U.S. presidents, he laments that "the divorce of civic identity from government, which Nixon set in motion, is nearly complete in Bush's speeches," and that in this conceptual shift, government "is the thing that went away and cleared the space now filled by private virtue."

The idea of American exceptionalism is a comparative argument, but is usually simply assumed and not based on comparative evidence. So Hodgson's book is most welcome. According to Winslow, Hodgson "concedes that a highly qualified version of exceptionalism has existed but within relatively narrow historical confines," and "it is 'less exceptional than is often claimed."

Sketching out international contexts from the Revolution forward, Hodgson points out that the American revolt was but one theater in a global struggle between England and France (a viewpoint also argued recently by Thomas Bender in "A Nation Among Nations").... Hodgson takes pains to point out that principles of the Revolution were "deeply rooted in European origins" and English Common Law but that Americans were "increasingly attracted to a national ideology that cast them as redeemers of a sinful world." Other than that distinction, much of his historical overview is an attempt to correct the record by showing how similar experience was in U.S. and European industrial nations, eroding the perception of American difference.

He hopes to persuade those who think that the "original intent" of the Founding Fathers can be discerned and should be followed today (read: Justice Antonin Scalia and his acolytes) that the framers approached their task with "uncertainty and humility," and that those who interpret their words now should adopt the same stance. As Beeman remarks, "there was precious little agreement among even those who had drafted the Constitution as to the precise meaning" of many clauses.

The author "certainly succeeds in showing that the convention's participants had diverse opinions about how to solve the primary problems of the prior Articles of Confederation: lack of a national taxing power and lack of national control over commerce. They also disagreed fundamentally about the proper relationship between states and nation, and about the nature and extent of presidential powers." Read the rest here.

Thomas G. Andrews, author of Killing for Coal: America’s Deadliest Labor War, is assistant professor of history at the University of Colorado, Denver. It is his first book.

Drew Gilpin Faust, author of This Republic of Suffering: Death and the American Civil War, is president of Harvard University and the Lincoln Professor of History on Harvard’s Faculty of Arts and Sciences. She is the author of six books, including Mothers of Invention: Women of the Slaveholding South in the American Civil War (Chapel Hill: University of North Carolina Press, 1996).

Pekka Hämäläinen, author of The Comanche Empire, is associate professor of history at the University of California, Santa Barbara. He writes on North American borderlands and Native American history, and is the author of When Disease Makes History: Epidemics and Great Historical Turning Points (Helsinki University Press, 2006).

In this provocation, John Milton's SAMSON AGONISTES is read paying attention to the legal language and taking seriously that Samson is a judge. This reading connects Samson's story to the judge's duty to preserve confidences. It emphasizes that decisions and secrets are not things that judges give, but are avowals of themselves. In looking at a story from the Book of Judges, it adds to the Coverian literature by emphasizing that in the Hebrew prophetic literature, judges precede the state.

Friday, March 20, 2009

Earlier this month, Deborah Rosen, Lafayette College, spoke on the topic "Racial Borders: Law and Citizenship in the United States, 1787-2009,"in the Politics, Ethics and Citizenship series of the Center of Ethics at Muhlenberg College.More particularly, she discussed "the evolution of constitutional law as it pertains to African Americans' citizenship, American Indian citizenship and the 'whiteness' prerequisite for naturalization of immigrants." The lengthy summary in the Muhlenberg Weekly is here.

While some excellent research has been conducted exploring the history of African Americans in the labor movement and during the New Deal (Kelley 1990; Sullivan 1996), within political science this has resulted in the following historical narrative: legislative change, followed by a strategy of litigation, resulting in union desegregation. Frymer makes a compelling case that when we deliberately set about to integrate race and class within the civil rights and labor narratives, we find that they are not sequential, but intertwined. He asserts that the institutions created to help democratize class – the Wagner Act of 1935 and the National Labor Relations Board (NLRB) – and race – Title VII of the Civil Rights Act of 1964, Equal Employment Opportunity Commission (EEOC), and the Federal Employment Practice Committee (FEPC) – did not work coherently to prevent racial discrimination in unions while simultaneously advancing the workers’ power. Instead they were striving at cross-purposes and cross-agendas. As a consequence, the role of the federal courts in enforcing civil rights legislation is much larger and significant than previously understood; its result, according to Frymer, was the gutting of the labor movement and the subsequent decline of the Democratic party. This is an intriguing argument and one that substantially bolsters the contention that racism in America is institutional, [*193] despite the continued emphasis on personal attitudes. In the introductory chapter, Frymer seems to imply these choices were the result of arrogance and poor judgment on the part of civil rights organizations and the judiciary. As his narrative unfolds, however, it becomes evident that he believes that the legislation establishing these institutions, the internal cultures of the NLRB and EEOC, as well as the subsequent choices made by Congress, rendered a strong judicial role inevitable.

At the end of the book,

Frymer turns to the questions of how this alternative interpretation of the empowerment of post-New Deal federal courts should influence judicial scholarship. Most importantly, he challenges – in a different fashion than the usual rejoinder – Alexander Bickel’s “countermajoritarian” critique. While he traces the recently revised perspective of many progressive legal scholars as to the appropriate role of the courts in policy making, Frymer argues that an institutional perspective recognizes that both the legislature and the courts inevitably have policy-making functions in a democratic society. BLACK AND BLUE is a powerful demonstration of how a different theoretical paradigm can result in new interpretations of not only historical events, but current understandings of both racism and judicial legitimacy.

Thursday, March 19, 2009

Harvard Law School Library has announced a new fellowship of up to $3,000 for scholars traveling to Cambridge to work in the library's special collections. Details about the Morris L. Cohen Fellowship in American Legal Bibliography and History can be found here. Applications are due on April 30, 2009.

The library has amazing resources, many of them still largely untapped. They also hold substantial collections of papers of Oliver Wendell Holmes, Jr., who wins my nomination for the figure in American history with the worst handwriting. (Eleanor Roosevelt comes in a close second.)

In this provocation, John Milton's SAMSON AGONISTES is read paying attention to the legal language and taking seriously that Samson is a judge. This reading connects Samson's story to the judge's duty to preserve confidences. It emphasizes that decisions and secrets are not things that judges give, but are avowals of themselves. In looking at a story from the Book of Judges, it adds to the Coverian literature by emphasizing that in the Hebrew prophetic literature, judges precede the state.

Since the dawn of the Hearsay Rule, formulations of which are as ancient as the common law adversary trial itself, various exceptions have allowed the admission of evidence that-while otherwise barred by the Rule-was deemed reliable or necessary to the conduct of fair trials. The Coconspirator Exception, which admits out-of-court statements made by a defendant's confederate during the course of and in furtherance of their joint wrongdoing, substantially predates the Constitution. Without this Exception, certain prosecutions, especially for crimes like drug distribution and complex white-collar frauds, might be impossible. Because such evidence is generally considered reliable, and because a defendant is said to have assumed the risk of its admission when he joined the conspiracy, the Exception has been relatively uncontroversial for some time.

In recent years, however, prosecutors-sometimes with the blessing of courts-have argued that when proving the existence of a "conspiracy" to justify admission of evidence under the Exception, they need show only that the declarant and the defendant were "coventurers" with a common purpose, not an illegal purpose. Indeed, government briefs and court decisions specifically disclaim the need to show any wrongful goal whatsoever. This Article contends that such a reading of the Exception is mistaken and undesirable. Conducted for this Article, a survey of thousands of court decisions, including the earliest English and American cases concerning the Exception as well as approximately 2,500 federal court opinions discussing the Exception since its federal codification in 1975, makes clear that a "conspiracy" under the Exception must involve wrongful acts. First, courts and commentators have for centuries described the Exception as concerning illegal or illicit conduct. Second, because the drafters of the Federal Rules of Evidence (and analogous state codes) intended to adopt the common law understanding of the Exception when codifying it in Rule 801(d)(2)(E), encroachment beyond the historical boundaries of the Exception violates existing rules of evidence. Third, and most important, such revisionism also violates the Confrontation Clause of the Sixth Amendment, which allows admission in criminal trials of evidence pursuant to hearsay exceptions "well established" at the time the Amendment was ratified but jealously restricts any broadening of those exceptions.

To adhere to the historical definition of the Coconspirator Exception to the Hearsay Rule, prosecutors should stop arguing that the conspiracy joined by the declarant and defendant may include purely lawful conduct, and courts encountering such arguments should reject them, lest they find themselves conducting new trials after the Sixth Amendment rights of convicted defendants find vindication on appeal.

Wednesday, March 18, 2009

The organizers of the nineteenth annual British Legal History Conference, to be held at the University of Exeter, 8-11 July 2009, have sent out a reminder that the booking deadline is March 31.

According to the conference announcement:

The conference primarily considers the approaches, perspectives and methodologies of legal history. By drawing together the leading scholars in the field it seeks to stimulate debate, analyse and highlight the fundamental processes in the researching and writing of legal history. It will identify and explore both traditional and novel approaches to the use of diverse source materials, and discuss their nature, relative value and issues of interpretation. This is the first time the methodology of legal history has been an area of focus in an international conference, and it is hoped that through this pioneering collaborative venture a greater understanding and appreciation of the multi-dimensional qualities and diversity of our subject will be achieved. In addressing the making of legal history, the conference provides an opportunity for scholars in law, history and other disciplines to take stock of how they conceive and construct their legal history, while at the same time offering a showcase for substantive legal history research.

This paper, prepared for a symposium on the Bill of Rights and the Fourteenth Amendment at the University of San Diego's Institute for Constitutional Originalism, examines the historical case for incorporation within the Fourteenth Amendment of the rights in first eight amendments to the Constitution in light of the recent turn in thinking about originalist methods of constitutional interpretation.

In recent decades, the historical case for incorporation has made something of a comeback, resting on strong evidence that many of the key framers of the Fourteenth Amendment considered the first eight amendments to be among the privileges and immunities of citizenship protected by the Fourteenth Amendment's Privileges or Immunities Clause. At the same time, however, most originalists have rejected the view that constitutional interpretation should be based on the intent of the framers, and instead have argued that constitutional text should be interpreted in light of its original public meaning. This approach, sometimes called "The New Originalism," seems to have prevailed in the Supreme Court; the Court's recent decision interpreting the Second Amendment's right to bear arms endorses original public meaning as the appropriate method of originalist interpretation.

This paper seeks to demonstrate that the New Originalism poses special problems for incorporation. The view of key framers that because the privileges and immunities of citizenship included the Bill of Rights was not the predominant one; although the concept of the privileges and immunities of citizenship at the time of the Fourteenth Amendment's framing was contested, the most widely shared view was the these privileges and immunities of citizens did not include the first eight amendments. Although many who crafted the Fourteenth Amendment had a different view, the evidence that the drafters succeeded in altering the public's understanding of the privileges and immunities of citizenship is in conflict, and in many respects unsatisfactory. Viewed through the lens of original public meaning, the historical case for incorporation is therefore problematic. The paper concludes that because the meaning of the Privileges and Immunities Clause at the time of ratification with rife with ambiguity, a nonoriginalist approach is a better way to tackle the incorporation problem, even for a New Originalist determined to base constitutional adjudication on methods for ascertaining constitutional meaning that were accepted in the framing era.